Common Law Marriage: A Postscript for the LGBTQ+ Community


Not long ago I wrote a blog and recorded a podcast on common law marriage. I recently came across a decision of Pennsylvania’s Superior Court that has significance for the LGBTQIA+ community. 

One of the factors in divorce is the parties’ date of marriage. Economic claims incident to a divorce, such as the who gets what of divorce, called equitable distribution, and alimony are based in large part on the length of the marriage. The length of the marriage depends on when the parties got married. So, what is your date of marriage if you were not legally allowed to get married until June 26, 2015, the date of the landmark United States Supreme Court case, Obergefell v. Hodges? That case declares unconstitutional all state laws restricting marriage to only heterosexual couples.

With a big exception, until January 1, 2005, Pennsylvania recognized common law marriages. A common law marriage is one where there is no formal marriage ceremony or license filed with the local Orphan’s Court. To be common law married, the parties need to have exchanged words, in the present tense, for the specific purpose of establishing the relationship of a married couple. For more on that, I refer you to my earlier blog post of May 28, 2020, specifically on common law marriage, the elements that need to be proven, and what courts look for in finding or denying the existence of a claim of common law marriage. 

The exception is that a common law marriage entered into before the effective date of the new statute, January 1, 2005, continues to be recognized. A valid common law marriage that existed before January 1, 2005, continues to be recognized. So, what happens if the same sex couple entered into a common law marriage before Obergefell in 2015 and before January 1, 2005? That question is answered in In re: Estate of Carter, 159 A.3d 970 (Pa. Superior 2017)

While not a divorce case, in this case on Christmas Day 1996, Michael proposed to Stephen asking if Stephen would marry him. Michael gave Stephen an engagement ring after Stephen said yes. Two months later, on February 18, 1997, Stephen gave Michael a wedding ring, engraved with the date. Every February 18th the parties celebrated their wedding anniversary. In 1999 they purchased a house together with a joint mortgage. They had mutual wills prepared to name the other as Executor. They had mutual financial and healthcare Powers of Attorney. They supported each other financially during times when only one of them was working. They held joint banking and investment accounts. Their respective families treated them as married and Stephen’s nieces referred to Michael as “Uncle Mike”. Stephen and Michael in all ways considered themselves married. 

Sadly, in 2013, Stephen died in a motorcycle accident. Michael asked the Beaver County, Pennsylvania, Orphan’s Court to issue a declaration that he and Stephen were married and, therefore, certain estate taxes were not applicable. Despite no opposition from any member of Stephen’s family, nor any government agency or taxing authority, the Beaver County Court denied the Petition.

On Appeal, Pennsylvania’s Superior Court reversed, finding that the parties entered into a common law marriage on February 18, 1997. The reasoning was that the state law limiting marriage to heterosexual couples was declared unconstitutional in the Obergefell decision. The right that Michael sought to pursue, therefore, was not a new right created in 2015, but a right that had existed all along and had always been guaranteed to Michael and Stephen through the United States Constitution. 

While the Carter case is not a divorce case, it has huge implications in the divorce world. Marriage equality also means divorce equality, so the date of marriage is of major importance in a divorce case. An earlier date of marriage means a larger marital estate to divide in equitable distribution and, in appropriate cases, a longer period of alimony.

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